APPLICATIONS FOR PERMISSION TO APPEAL: THE PROPOSED RESPONDENT CAN HAVE THEIR SAY

An interesting point arose in the Court of Appeal decision today in Carr v Panel Products (Kimpton) Ltd [2018] EWCA Civ 190. When a party seeks permission to appeal from the trial judge – can the other party make submissions in opposition. This puts an end to the argument (that I have heard expressed on occasion) that a proposed respondent has no business responding to an application for permission to appeal.

“If a trial concludes with an ex tempore judgment and the losing party applies for permission to appeal, the successful party will invariably be heard by the judge, unless the judge decides to refuse permission without hearing from the winner”

THE CASE

The claimant had been unsuccessful in a claim for industrial deafness. The claimant sought permission to appeal. The defendant made submissions against that application. The claimant objected to the defendant making submissions on the issue of permission to appeal.

“Mr Hester made his oral application for permission to appeal and he resisted Mr Turton being heard upon that application, relying upon the decision of this court in Jolly v Jay [20012] EWCA Civ 277, dealing with the old practice relating to such applications in the Court of Appeal for permission to appeal, not with such applications at first instance. The judge, however, did hear Mr Turton on the permission issue. He refused permission to appeal and ordered that the costs of that hearing be costs in the case.”

THE COURT OF APPEAL JUDGMENT ON THIS ISSUE

As already indicated, Mr Hester’s submission is that, on 15 March 2015 the judge should not have permitted Mr Turton to advance submissions to him on what turned out to be the sole point of contention at the hearing at which judgment was to be formally handed down. He relies upon the decision of this court in Jolly v Jay, concerning the old practice in this court governing applications for permission to appeal.

In the Court of Appeal, on the application for permission to appeal, it remains primarily a matter for the applicant to persuade the court to grant permission. The court does not hear from the respondent, although there has recently been introduced a procedure whereby respondents (if so advised) are permitted, and indeed are encouraged, to submit brief statements as to why they say permission should be refused. The right to renew in open court an application for permission to appeal refused on the papers by the Single Judge has been abolished from October 2016. Both before and after such changes, the respondent does not usually attend an application which is made in court unless invited by the court to do so and, if he or she does so attend uninvited, there is unlikely to be any costs order in his or her favour.

However, that procedure does not apply at first instance. If a trial concludes with an ex tempore judgment and the losing party applies for permission to appeal, the successful party will invariably be heard by the judge, unless the judge decides to refuse permission without hearing from the winner. The same is also true, in my experience when a judgment is circulated in advance in draft but (perhaps unusually) is handed down at a hearing at which both parties are present. Even if there is no such hearing, the court will usually accept submissions in writing from both sides on any application for permission to appeal. That practice is followed in the Court of Appeal if an unsuccessful party wishes to apply for permission to appeal to the Supreme Court.

I can see no reason why the judge should have declined to hear Mr Turton on the permission to appeal application and he was, therefore, to my mind entitled to say that the costs should be costs in the case.